In the Office of Inspector General (“OIG”) Advisory Opinion 11-14, dated October 7, 2011, the OIG analyzes an arrangement in which Requestor is an opthalmic physician group practice that provides cataract surgeries and also employs optometrists. By way of brief background, generally, patients receiving cataract surgery may elect to have either a conventional intraocular lens (“Conventional IOL”) or a premium intraocular lens (“Premium IOL”) (Premium IOLs have the ability to correct preexisting refractive problems whereas Conventional IOLs do not). Medicare covers Conventional IOLs when reasonable and necessary, but only partially covers the professional and facility fees associated with Premium IOLs as Premium IOLs are significantly more expensive. When billing Medicare, cataract surgery is a global surgical procedure in which the physician is reimbursed one global fee covering the pre-operative care, the surgery and the post-operative care for the ninety (90) days following the surgery. If a physician transfers the patient to another healthcare professional during the “global surgical period,” the healthcare provider must use either modifier -54 (surgical care only) or -55 (post-operative management only).
Under the Proposed Arrangement, the ophthalmologists providing Premium IOLs will offer patients the opportunity to return to their optometrists for post-surgical care. However, under this co-management arrangement, the optometrists would likely charge separately for its services that are not covered by Medicare. Requestor seeks an advisory opinion on whether this Proposed Arrangement is permissible under the Social Security Act. Specifically, the OIG framed the issue and took a position as follows:
The Requestor has posed a very narrow question: whether the Proposed Arrangement, pursuant to which the Requestor would co-manage a Medicare beneficiary with an optometrist who would charge the beneficiary for the additional testing and services related to the Premium IOLs, would constitute remuneration to a referral source in the form of an opportunity to earn a fee. The Requestor has not asked whether the opportunity to earn a fee through the co-management of Medicare beneficiaries may be prohibited remuneration under the anti-kickback statute when the optometrist charges no fee in excess of the Medicare fee schedule, and we express no opinion on that separate question. Rather, the Requestor has asked us whether the opportunity for the optometrist to earn a fee for services not covered by the Medicare program in connection with post-operative management of Premium IOL patients may constitute prohibited remuneration. Under the facts present in the Proposed Arrangement, we conclude that it would not.
The OIG’s favorable position rests on the following elements of the Proposed Arrangement:
- There would be no written or unwritten agreements to co-manage patients between Requestor and the optometrists. Rather, the Requestor would explain that the patients may return to their optometrists.
- Requestor would inform those patients electing to receive Premium IOL that the optometrist may charge them separately for his/her services related to the Premium IOL. This, essentially, reduces the likelihood that the patient would return to the optometrist.
- The increased costs associated with the Premium IOLs are not covered by Medicare. Additionally, Requestor has certified that it complies with all applicable Medicare billing and coding requirements.
- Upon patient request and upon signing an informed consent form, Requestor will transfer patients back to the referring optometrists.